The short answer is that a parent can take a child out of the state of California during a divorce only if the other parent gives written consent or the court issues an order allowing it. This is because the Automatic Temporary Restraining Orders (ATROs) prevent such conduct. Here is the law and why it exists:
The rules of parenting when it comes to travel with children change as soon as one of the parents files for divorce. This is when the court imposed automatic temporary restraining orders (ATROS) take effect.
The first section of the ATROS state that neither parent can take “any minor children out of the state or apply for a new or replacement passport without the written consent of the other parent or a court order.”
This rule takes effect on the person filing for divorce as soon as the summons and complaint is filed. It takes effect on the other parent as soon as they are served with the summons, which by the way is written out on the reverse side of the summons. See Family §233 to see when the ATROS take effect.
The purpose of the automatic temporary restraining orders (ATROs) and specifically the provision regarding the travel of the children is twofold: First, to make sure the Court ensures the children are safe and two to keep the parties to the divorce on an even playing field. It is all too common for a parent to move the children to another state with them and use that as a tactic to gain leverage on the other spouse. The Orange County Superior Court judges not only frown on such conduct but also will hold a party to a divorce in contempt of court for knowingly violating the Automatic Temporary Restraining Orders (ATROs.)
This is a common issue not only for parties who wish to travel nationally within the United States and those that wish to take their children out of the country. So long as there is no risk to the children or concerns of parenting the Orange County Family Court Judges will allow for reasonable travel outside of California so long as the traveling parent provides the other with an itinerary of travel, specific dates, and arranges for contact with the children during the trip.
International travel is a more complex issue as the Orange County Family Court Judges often are concerned that a child who is taken out of the country may not be returned. This is because the risk of child abduction increases when the child is out of the reach of the United States. In this scenenario the Orange County Family Law Judges will often look to whether the destination of travel is a member of the Hague Convention. Countries who are signatories of the Hague have agreed to cooperate and return the children to the United States. The Judges will also look to whether the traveling parent has sufficient ties to Orange County and the United States in order to determine the risk of abduction. If the traveling parent has a long standing job in the US, family here, money here, etc. the Court will view the risk of abduction lower than it would a parent whose permanent residence is in another country.
To learn more about this topic or other divorce and family law issues visit the Core Law Group blog at www.www.corelawgroup.com/blog or call one of Core Law Group’s Orange County Divorce attorneys at 949-505-2479.